DOWNIE & DOWNIE

[2013] FamCA 106

FAMILY COURT OF AUSTRALIA

DOWNIE & DOWNIE [2013] FamCA 106

FAMILY LAW - PRACTICE AND PROCEDURE – whether the Court should proceed to hear the matter on an undefended basis – where the father did not understand that the matter was listed and that he was at risk of the matter being heard undefended – best interests – no order to proceed to hear the matter on an undefended basis – matter referred to a Registrar for directions for preparation for trial.

Family Law Act 1975 (Cth)

Rice & Asplund [1979] FLC 90-275

APPLICANT: Ms Downie

RESPONDENT: Mr Downie

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1677 of 2009

DATE DELIVERED: 19 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Kelly & Co

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

Upon noting:

1. the matter was originally listed as one of the matters to be heard in September 2012 and request that the matter be given a trial listing as soon as an appropriate listing is available;

2. the parties to give consideration to what witnesses they are calling and whether it is necessary for any further family report to be prepared or updated.

IT IS ORDERED THAT

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Docket Registrar on a date to be advised by the Court NOTING THAT the parties currently estimate the length of the trial to be approximately ten [10] days.

1. Within twenty-one [21] days the father is to file and serve an affidavit setting out full particulars of his employment including place of employment, name of employer, amount received by way of salary or contract and full particulars of the term of employment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Downie & Downie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1677 of 2009

Ms Downie

Applicant

And

Mr Downie

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has previously attempted to be listed for final hearing in October 2012.  The steps to make those arrangements for listing were taken in July and August of 2012.  As a result of the father’s solicitor ceasing to act for him and the father’s non-appearance at various hearings, the matter was listed for consideration of it being determined on an undefended basis before me. 

2. On the last of those occasions the father appeared unrepresented and sought to set aside any suggestion that the matter would be listed on an undefended basis.  Since then there have been various adjournments whilst the parties filed their affidavit material and attended to inspect subpoenaed material.

3. I have before me this morning the father appearing by telephone link from Queensland;  the mother is represented by Ms Dickson, and the Independent Children’s Lawyer by Mr Hemsley.  On behalf of the mother it is sought that the matter be dealt with on an undefended basis.  This is opposed by the father and not supported by the Independent Children’s Lawyer. 

4. The significant material which is before the Court in relation to the basis upon which the father failed to attend or comply with the previous orders relates to his absence from South Australia, and what appears to be his directions to his solicitors to contact his sister during his absence. 

5. I am not able to determine on the papers before me the exact basis of the facts upon which each of the parties rely, but it seems to me that there is sufficient information there to suggest that the father did not deliberately ignore the orders of the Court, and was not in a position, as he alleges, when he was interstate to understand that the matter was listed and that he was at the risk of the matter being heard undefended.

6. It is also clear that to a large extent it is not the fault of the wife’s solicitors or the wife in any way that this has been brought about;  quite to the contrary, the wife and her solicitors were ready to proceed in accordance with the Court’s orders.  What has to be taken into account, however, is the issue which is outstanding in this matter, namely the arrangements which are to be made for the two children of the parties. 

7. As has been pointed out, there have been proceedings on foot in the Federal Magistrates Court and then later this Court since May of 2009. 

8. One of the submissions on behalf of the mother was that if these proceedings were dealt with on an undefended basis then the father could consider, on his return to South Australia, bringing further proceedings.  However, it was not conceded that those further proceedings would not be the subject of an argument based upon the Rice & Asplund principles that the issues had already been dealt with. 

9. The difficulty the Court faces is in assuring that if the matter were to proceed on an undefended basis that due process and an opportunity of all parties to be heard in an appropriate manner had been given.  In this case, it is clear even on the contested evidence that the father asserts that he was not aware of the hearings and had not been personally made aware of the difficulties which would be faced if he or his lawyers did not attend on that occasion.

10. I appreciate that there may be some of these matters which relate to the credit to be dealt with in cross-examination when and if the matter proceeds to trial.  However, the overall issue I consider is the consideration of ensuring that proper process is being followed, and that the Court is able to decide the matter in an appropriate way.  If the matter were to proceed undefended, then the principal issue would of course still be what is in the best interests of the children. 

11. In order to have all of the information available to the Court as to what is in the best interests of the children, it would be appropriate for the Court to permit the father to continue to participate.

12. Taking all of the matters into account, therefore, I do not propose to proceed to hear the matter on an undefended basis, but will direct that the matter be referred to a Registrar for directions for preparation for trial.

13. The Court is aware that the matter was previously listed reasonably high up in a list of matters that was to be heard in October of 2012;

14. In relation to the communication, Mr Downie, if you give the address for service of your sister’s address, which is the address on your last affidavit, then the requirement is that you will be served with documents by the Court and the other parties by having the matters delivered to that address.  It is also relevant in relation to the future listing of the matter that you provide the Court and the other parties with an affidavit setting out your current employment arrangements, namely an affidavit detailing the place of your employment, the name of your employer and your financial arrangements with that employer.

15. At the hearing before the Registrar, consideration will obviously need to be given to who are all of the witnesses that are being called, and whether it is necessary for any further Family Report to be prepared.

I certify that the preceding fifteen  (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 February 2013.

Associate: 

Date:  27 February 2013